Dear Musicians: The RIAA Is About To Totally Screw You Over (Again!)

from the watch-for-it... dept

It's been two years since we first warned of the pending fight concerning musicians asserting their copyright termination rights. As you hopefully know by now, copyright law includes a "termination right," which cannot be contractually given up, which allows the original content creator to "reclaim" the copyright on their works 35 years after it was created. The only real exception is in cases where the work qualifies as "work for hire." I'm actually not a huge fan of termination rights in the first place for a variety of reasons, but the fact is that they're there... and they scare the entertainment industry silly.

The big legal fights so far have mostly been about the comic book industry, with the heirs of Superman's creators having won back some rights to Superman -- while Jack Kirby's heirs failed to win back the rights to The Incredible Hulk and X-Men. Kirby's family just appealed and there are still additional disputes around the Superman stuff.

However, the real showdown is about the music industry. The NY Times has an article about the impending battle, which has a variety of interesting tidbits, but none more ridiculous than the RIAA officially making it clear that it intends to totally screw over musicians. As we made clear two years ago when we wrote about this, the RIAA was going to come out fighting to try to block what the law clearly allows, and will do everything it can to screw over artists and keep them from regaining their own copyrights.

“We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees.

First, this may be the first time the mainstream media has accurately pointed out that the RIAA represents the "interests of the record labels" rather than the interests of the music industry or musicians. As is clear in this case, the RIAA's interests are diametrically opposed to the interests of artists, and the fact that Marks has the gall to flat out say that termination rights don't apply to most sound recordings is so intellectually dishonest.

The RIAA knows full well that termination rights absolutely do apply to most sound recordings. To be fair, this is mostly an accident of history. As was detailed in an excellent IP Colloquium episode last summer all about termination rights, what got covered and what didn't basically depended on who was in the room and who was more aggressive in their lobbying. Nine "work-for-hire" exceptions were put into the law. It doesn't make much sense which ones made it and which didn't, but that's lobbying for you.

However, the reason we know that the RIAA is fully aware of the fact that copyright termination does apply to most sound recordings is because a dozen years ago, recognizing that this was going to become an issue, the RIAA famously had a small time Congressional staffer by the name of Mitch Glazier sneak four innocuous looking words in the middle of a totally unrelated bill to quietly and retroactively have sound recordings declared "works for hire." This literally happened overnight with no elected officials who were voting on the bill being made aware of it.

Once that became public, artists (quite reasonably) freaked out and went very, very public about how the RIAA was totally screwing them over. It's one of the few times in history when Congress actually went against the RIAA, removing the language soon after it was approved. Of course, the guy who slipped the language in, Mitch Glazier, came out of this fine. Just three months after putting in that language, he was hired by the RIAA at a $500,000 per year salary, and he's just been promoted to the number two spot at the RIAA.

If you ever needed any more evidence that the RIAA is entirely anti-artist, this is it. It's put the guy who tried to take away their right to regain copyrights in the number 2 spot just weeks before out and out declaring that the organization simply doesn't believe sound recordings qualify for termination rights.

So, since they know damn well that sound recordings do qualify for termination rights, how are they going to claim otherwise? They may (as the NY Times article suggests) try to rely on last year's ruling concerning Bob Marley's recordings, in which they were declared "work for hire" and his family was unable to reclaim the copyright. But that's a different story, as those recordings happened prior to the rules of the 1976 Copyright Act, so the ruling really doesn't apply.

Instead, my bet is they're going to lean heavily on a Second Circuit Appeals Court ruling from last year, which claimed that an album is a single compilation for the purposes of copyright law. That matters, because while "sound recordings" are not covered as a "work for hire," "compilations" are. Of course, the obvious intent of including "compilations" was based on the realization that if multiple people contribute pieces to a larger whole compilation, separating out those rights later under termination laws would be freakishly impossible. Thus it was just easier to label the entire compilation as held by the producer. But a single album by a single artist clearly is not a compilation in that sense, despite the RIAA's claim above.

Other than that, the only way the RIAA can make a work for hire claim stick is to say that musicians were employees who created the music "within the scope of his or her employment." That, obviously, is completely laughable, since the labels don't hire musicians, nor do they pay them salaries. In fact, while they give them "advances," those are merely a form of loan that the artists have to pay back out of their own earnings. So the labels aren't even paying for the music creation.

Either way, it's pretty stunning that the RIAA has so blatantly declared war on artists. I'm somewhat surprised that more musicians aren't speaking out about this, but it's going to happen. No wonder the RIAA is so desperate to get things like PROTECT IP passed now, before this next battle comes to fruition. Once you have a bunch of big name musicians going very public about how the RIAA is screwing them over, it's going to be increasingly difficult for the RIAA to keep up the facade about how it's representing the interests of musicians while it's actively and vocally trying to totally screw them over.

But copyright should have TOTALLY expired by 35 years!

This is just switching beneficiaries of an already too long privilege.

As said elsewhere, if carpenters and masons had the "right" to claim perpetual income for building the houses of RIAA executives, I'd call that fair. Since they don't, I have to side with the RIAA on the "for hire" part, while still reviling them for not distributing the revenue fairly for all those years.

But 35 years on top of the unilaterally changed deal that existed previously: no, copyright is NOT perpetual, so I can't side with musicians either.

If this goes the artists' way, it will be the final nail in the coffin for the big labels. We're talking about all music from 1978 on finally getting into the hands of the people they belong in, who will take their music straight to an indie label, or if they're big enough, start a label just to distribute their own work.

Re:

Other than scope of employment, there must me a written instrument that expressly makes the work a work-for-hire (17 U.S.C. 101). So if there is no contract that expressly states that the music was a work-for-hire, then it absolutely is not.

So what.

As far as I'm concerned, these artists deserve everything they get while they sat on their hands and allowed law after law get passed in "their" behalf while screwing everyone else out of their legal rights in the process.

I'm not a pirate and I'm sick of these "artists" treating me like one. Yes, the *artist* is just as responsible for doing nothing to stop the DMCA, as just one example, as it stripped us *buying customers* of our rights.

May the RIAA succeed in this.

Then, maybe artists will pull their heads out of the sand and help us get these laws redacted.

Re: But copyright should have TOTALLY expired by 35 years!

I am not an employee of my bank because they gave me a loan. That's ridiculous. In fact, because the record company gave a band money, and the band is expect to pay the company for giving the loan, the record company is the hired worker in that situation.

And why does the FAMILY of the ORIGINAL artist get any claims? That's another thing that makse this stupid. They didn't do the work, why do they get paid.

Re: But copyright should have TOTALLY expired by 35 years!

How exactly can you side with the RIAA when they attempted to subvert the democratic process? Say what you will about Congress and corruption, but sneaking in language into a bill so that it'll get approved without debate? In the middle of the night?
As for the musicians being employees? So, does that mean they get a legal wage/salary/commission? Despite whatever agreement an employer makes with an employee for the employee's wages, an employee is entitled to certain minimum wages set by the federal government. If they're employees, do they get worker's compensation, and unemployment insurance? Will the RIAA labels now have to pay back-dated tax on their "employees" salaries?

Re: I got this one guys!

It is incredible how Masnick is shortsighted and does not realize how it is a move from RIAA to further protect the artists. If the copyrights to a determined work are put in the hands of the artists, not the RIAA how will they protect themselves from you freetards? RIAA has the resources to fight the blatant stealing of intellectual works.

Re:

Some rights can't be signed away - an extreme example is that I can't sign a paper giving someone explicit permission to shoot me dead and expect that person to not be charged with a homicide. The status of a sound recording is another such right - even if the contract says it's a work for hire, the Copyright Act of 1976 says otherwise.

Well, at least there is one benefit. If everything becomes a work for hire, musicians should all try to claim unemployment benefits and list the RIAA as their last "employer". The back taxes might make the magic accounting at the labels look reasonable compared to the IRS paperwork that would pop up.

"The RIAA knows full well that termination rights absolutely do apply to most sound recordings."'

That is actually not clear at all. It's a very difficult question to answer and there's not a lot of case law on the topic (or, at least, there wasn't when I last researched the topic a few years ago).

Most recording contracts say that the works are works made for hire. The question is whether they fall into one of the statutory word made for hire categories.

There's a legitimate argument that recorded songs are contributions to a collective work (i.e., an album), or even that individual musical performances (e.g., vocal work) is a contribution to a collective work (a song).

I'm not sure that such an argument would eventually win the day in a court case, but acting like the issue is well-settled and the lables know they are wrong is...well, it shows your ignorance and/or bias.

Re:

Lets go down the road you apologists so often use: Legal or not, how is this morally/ethically acceptable to any thinking person? An association reportedly created to "protect" the rights of artists are going to sue their namesake in order to unjustly enrich themselves from work they never created themselves?

You and your ilk are parasites in every sense of the word, pure and simple.

Re:

Not to mention all the back Social Security and Medicare deductions (with penalties and interest) the RIAA would suddenly owe the U.S. Government.

Can't wait to see how the RIAA would try to weasel their way out of that one. The IRS is famous for seizing the assets of companies that don't pay, whether they show a profit or not, when it comes time to pay taxes.

Re: Title of this TD article is highly misleading

Okay, nevermind.

The word "again" is appropriate if the RIAA is going to continue screwing musicians the way it has been but is now adding an additional new method of screwing musicians. That new method of screwing musicians in addition to the current method would be the "again" part.

Re: Re: Re:

Re: So what.

You couldn't be more right.

The FAC members even went so far as to back 3 strikes legislation that they KNEW would fail.
After watching them backpedal and support the labels in their
efforts to get 3 strikes implemented, I am content to sit silently and let the labels take the last scraps they can from the 'old guard'. I hope they enjoy their dose of Karma.

Re: Re: Re:

Re: Re: I got this one guys!

The artist's don't have anything to lose from the internet community and digital media. It only provides a cheap means to perpetuate the popularity of their music and their name. Only the label has something to lose because it means that, without new laws, talented musicians/songwriters can bring their products to market without the help of record labels. Record labels are dying and they're fighting to their last breath...face it.

Re: Re: So what.

Re:

Some artists have already filed the paperwork to reclaim rights, so of course the labels are going to come up with a contrary argument. Why this site tries and put a negative spin on everything dealing with the labels confounds me.

One word

Royalties. If all of the music was "work for hire", why do they pay the artists royalties? I mean, they do their very desperate best to NOT pay them, but occasionally a few dollars do make it to the bigger artists.

Re: Re: Re: I got this one guys!

Re:

No, if this goes the artists way, it is far from the final mail in the labels coffin. Sure, they'll lose some rights over time, but not all artists will reclaim their rights (for one reason or another). The RIAA will continue to work (mostly behind the scenes) to puch the laws further and further in their favor. Yes, they will have pissed off a few more artist than they already have, but by losing this round they would drastically decrease the resistance they would otherwise dace down the road.

In the long run, it will likely hurt them far more if they actually WIN this particular battle. Let the artists who so far have perpetually and consistently turned the other cheek see what "there" industry REALLY thinks of them. Let them see what their government really thinks of them.

Then lets see how much support they get from artists as the try to push their ACTAs and their PRO-IPs. A loss here doesn't set them back any, doesn't even stop them really, it merely slows their progress a bit. A win here might actually create enough backlash to at least stop their next attack in it's tracks, and maybe even enough momentum to push for real reforms.

Re:

I'm not sure that such an argument would eventually win the day in a court case, but acting like the issue is well-settled and the lables know they are wrong is...well, it shows your ignorance and/or bias.

It's both. The fact that Mike wrote something is prima facie evidence that it's both ignorant and biased.

Re:

You keep saying this, yet I've never seen this in any of the (few) contracts I've seen, and I've never even heard of it being part of a standard recording contract.

You do realize that assigning the copyright to the label does not make it a work for hire, right?

Here is the relevant part of the law:

A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

In other words, if the musician isn't an actual "employee" (and they aren't - because the labels would have to pay them as one), the work must fall within one of those categories, and must be explicitly designated as a "work made for hire" (and not, for example, a work whose copyright is simply assigned to the label).

For the "collective work" section to apply, the work must have been "specially ordered or commissioned" solely for that collective work:

Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

So, if you're a studio musician that was hired for backup vocals on a Steely Dan album, you probably never held the copyright in the first place; but if, like most artists on the major labels' rosters, you are a recording artist and/or songwriter, you automatically have termination rights.

That Explains It

"....an album is a single compilation for the purposes of copyright law."

That explains why the digitally remastered CD of Bob Seger's "Stranger In Town", which was track-for-track identical to the 1978 album (and previous CD editions), said "This compilation (C)2001" ~ they've been preparing for this for years it seems!

Re:

First, this may be the first time the mainstream media has accurately pointed out that the RIAA represents the "interests of the record labels" rather than the interests of the music industry or musicians.

Just so you know I became a PUNKER in 1976 and fully stopped buying anything from the huge labels.For a few years before that I mostly bought used vivnyl at the Boston Vinyl Stores.I hate the RIAA and so do most of my musician friends.Every band I have been in (still playing as big meat hammer or the lynn rebels) will have nothing to do with big labels and/or RIAA.
They can both fuck themselves.They love to complain about downloads and forever they have both ripped off Artists (some were my older friends) and us the Consumers.
FUCK OFF AND DIE !!!!

Anyone who buys or supports Artists who sign with RIAA/Big Labels are a traitor to us all.Stay the hell away from these leeches and do us a favor by buying your product as a used physical CD.

I think that when a artist works for a record company the record company does have ownership of their works... I know this may not seem fair to the musician but if they wanted no issue with their rights they should have remained independant. I think that the record companies should make this obvious in thier contracts with these artists. (however this will actually be a good thing in the end because there will be more independant artists)

...

As someone who pretends to be a musician, (i have recordings. Lots.) I just want to voice my disgust with the attitude of the riaa. Just when I thought they couldn't sink any lower with the jammie thomas lawsuit, we have them openly declaring war on the artists they are claiming to defend. I am disgusted. How they can be so short sighted and sfupid boggles my mind. Yes, artists need to be supported, but lawsuits help no one but a bunch of rich assholes who have already made millions of dollars doing nothing. my only hope is that this helps other musicians see what a bag of shit it is to be associated with the riaa. Pefsonally, I hope this dissuades other bands from further association with the riaa, but I am rather doubtful which leads me to the only conclusion I can reach at this point: fuck copyright, steal everything.

Re: Re: That Explains It

Exactly - why do they call it a compilation when it is the same album coming from a new master? The songs are in the same order and everything. It wasn't called a compilation until 2001. So obviously they (or, at least, EMI) knew this was coming 10 years ago!

Re: Re:

Obviously, I don't have personal knowledge of the content of 51% of ever recording contract ever written.

However, I know that standard forms in form books often (I would say "usually" but I'll just be conservative here) include such provisions.

See Ronald Farber, Negotiating Contracts in the Entertainment Industry, form 160-1, para. 9.01 (“Each Master made under this agreement or during its term…will be considered a “work made for hire” for XYZ [the record company]; if any such Master is determine not to be such a “work,” it will be deemed transferred to XYZ by this agreement, together with all rights and title in and to it.”)

Re:

The real problem is the recording industries system. It should be set up like literary works. The publishers don't own the copyright, just a license to print, market and publish the books. The author maintains the rights to the book and the profits are split far more fairly.

In the music industry the record company demands all of the copy rights and then the artists have to go back and sue in order to regain ownership of their own songs, after their contractual obligations have been filled.

credit where credit is due

The copyright office has posted an Aug 2006 Billboard cover story by Susan Butler (http://www.copyright.gov/docs/termination/comments/2010/reply/susan-butler-music-confidential.pdf) that warns about this problem in depth. I imagine that the NY Times used Susan Butler's story as background, since the NY Times used the same specific examples that Ms. Butler used (references to producers and sound engineers possibly being authors and to Donna Summer).

I fell across your article and noticed you took credit for first warning people about this whole reversion issue. Actually, Susan Butler and Billboard preceded you by a few years. Credit should go where credit is due.